UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4751
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAVONTE LAMONT HALLMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00097-MOC-DCK-1)
Submitted: June 26, 2014 Decided: July 10, 2014
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Haakon Thorsen, THORSEN LAW OFFICES, Charlotte, North Carolina,
for Appellant. Anne M. Tompkins, United States Attorney,
William M. Miller, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Lavonte Lamont Hallman of conspiracy
to commit robbery affecting interstate commerce by force or
violence (Count One), 18 U.S.C. § 1951 (2012) (“Hobbs Act”);
robbery affecting interstate commerce by force or violence
(Count Two), 18 U.S.C. § 1951; using and carrying a firearm
during and in relation to a crime of violence (Count Three), 18
U.S.C. § 924(c) (2012); and possession of a firearm by a
convicted felon (Count Four), 18 U.S.C. § 922(g)(1) (2012).
Designated a career offender, Hallman received a below-
Guidelines sentence of 294 months’ imprisonment.
On appeal, Hallman raises four claims, all of which
stem from his argument that his robbery of an O’Reilly auto
parts store in Charlotte, North Carolina, had no impact on
interstate commerce and therefore this case does not fall within
the scope of the Hobbs Act. Specifically, he claims that there
was insufficient evidence to sustain his Hobbs Act convictions;
the district court erred in denying his motion to strike the
introduction of the indictment related to the store’s commerce-
related activities; there was no basis for federal jurisdiction;
and his sentence was disproportionately high. We affirm.
Hallman first asserts that his conviction is not
supported by sufficient evidence. We review challenges to the
sufficiency of evidence de novo. United States v. Roe, 606 F.3d
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180, 186 (4th Cir. 2010). We are “obliged to sustain a guilty
verdict that, viewing the evidence in the light most favorable
to the prosecution, is supported by substantial evidence.”
United States v. Osborne, 514 F.3d 377, 385 (4th Cir. 2008)
(internal quotation marks and citations omitted). Substantial
evidence in the context of a criminal action is “evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc).
The Hobbs Act makes it a crime to commit robbery or
extortion to obstruct, delay, or affect commerce or the movement
of any commodity in commerce. * “A Hobbs Act violation requires
proof of two elements: (1) the underlying robbery or extortion
crime, and (2) an effect on interstate commerce.” United States
v. Williams, 342 F.3d 350, 353 (4th Cir. 2003). The Hobbs Act’s
“jurisdictional predicate is satisfied where the instant offense
has a ‘minimal effect’ on interstate commerce.” United States
v. Tillery, 702 F.3d 170, 174 (4th Cir. 2012), cert. denied, 133
*
In pertinent part, the Hobbs Act provides: “Whoever in any
way or degree obstructs, delays, or affects commerce . . . by
robbery . . . or attempts or conspires so to do, or commits or
threatens physical violence to any person or property in
furtherance of a plan or purpose to do anything in violation of
this section shall be fined under this title or imprisoned not
more than twenty years, or both.” 18 U.S.C. § 1951(a).
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S. Ct. 2369 (2013). For purposes of the Hobbs Act, a robbery
“has a minimal effect on interstate commerce when it depletes
the assets of an inherently economic enterprise,” and in making
this determination, this court “do[es] not look at the impact of
the immediate offense, but whether the relevant class of acts
has such an impact.” Id. (internal quotation marks and
citations omitted); see also United States v. Taylor, ___ F.3d
___, 2014 WL 2535474 (4th Cir. June 6, 2014) (No. 13-4316)
(reaffirming that the class of activities are considered in the
aggregate in order to determine whether they impact interstate
commerce).
Hallman argues “there was absolutely no interference
with interstate commerce, [] no probable effect . . . and no
depletion of the store’s assets.” But an impact to interstate
commerce is not difficult to show. Taylor, ___ F.3d at ___,
2014 WL 2535474 at *3. Contrary to Hallman’s argument, the
minimal impact on interstate commerce may be shown by “proof of
probabilities without evidence that any particular commercial
movements were affected.” United States v. Brantley, 777 F.2d
159, 162 (4th Cir. 1985). Having reviewed the record, we
conclude that the evidence was more than sufficient to establish
the interstate commerce element essential to sustain Hallman’s
convictions under the Hobbs Act and that his challenge to
federal jurisdiction on this basis likewise fails.
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Next, Hallman claims the district court erred in
denying his motion to strike the introduction in the indictment,
which detailed the ways in which the auto parts store was
engaged in interstate commerce. “[A] motion to strike
surplusage from the indictment should be granted only if it is
clear that the allegations are not relevant to the charge and
are inflammatory and prejudicial.” United States v. Williams,
445 F.3d 724, 733 (4th Cir 2006) (internal quotations and
citation omitted); see also United States v. Hedgepeth, 434 F.3d
609, 612 (3d Cir. 2006) (“[I]nformation that is prejudicial, yet
relevant to the indictment, must be included for any future
conviction to stand and information that is irrelevant need not
be struck if there is no evidence that the defendant was
prejudiced by its inclusion.”).
Here, the allegations in the introduction to the
indictment were clearly related to the auto parts store’s ties
to interstate commerce, a necessary component of the Hobbs Act
charges. We further conclude that the district court correctly
determined that that statement did not contain inflammatory or
unfairly prejudicial allegations and that it, therefore,
properly denied the motion to strike.
Last, Hallman claims that he has been subject to cruel
and unusual punishment because his sentence is disproportionate
to the sentence the state would have imposed for the robbery.
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We review de novo challenges to sentences on Eighth Amendment
grounds. United States v. Malloy, 568 F.3d 166, 180 (4th Cir.
2009). The Eighth Amendment forbids cruel and unusual
punishments and implicitly requires that a criminal sentence be
proportionate to the crime or crimes of conviction. Solem v.
Helm, 463 U.S. 277, 284 (1983). We recently clarified that
proportionality review is available for a term-of-years
sentence. United States v. Cobler, 748 F.3d 570, 579 (4th Cir.
2014); see also United States v. Hashime, 734 F.3d 278, 287-88
(4th Cir. 2013) (King, J., concurring) (explaining that
proportionality review is available for sentences less than life
without possibility of parole).
In analyzing a claim that a sentence violates the
Eighth Amendment, we must first decide whether a threshold
comparison of the gravity of a defendant’s offenses and the
severity of his sentence leads to the inference that his
sentence is grossly disproportionate to his crimes. Cobler, 748
F.3d at 579-80. In the “rare case” that a defendant establishes
this inference, “the [C]ourt should then compare the defendant’s
sentence with the sentences received by other offenders in the
same jurisdiction and with the sentences imposed for the same
crime in other jurisdictions.” Graham v. Florida, 560 U.S. 48,
60 (2010).
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We conclude that Hallman cannot show that his below-
Guidelines sentence of 294 months’ imprisonment presents the
“rare case” sufficient to raise an inference of gross
disproportionality. His Guidelines range was generated by his
career offender status and, in any event, the district court
granted a downward variance because the Hobbs Act robbery in
this case was not as severe as other potential Hobbs Act
offenses. We therefore reject Hallman’s Eighth Amendment
challenge to his sentence.
Accordingly, we affirm Hallman’s convictions and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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